Dona Maria Francisca Reilly De Camara v. John Brooke

• Citation: 52 L.Ed. 676,28 S.Ct. 439,209 U.S. 45
• Decision Date: 16 March 1908
• Docket Number: No. 104,104
• Parties: DONA MARIA FRANCISCA O'REILLY DE CAMARA, Countess of Buena Vista, Plff. in Err., v. JOHN R. BROOKE, Major General, U. S. A
• Court: United States Supreme Court

209 U.S. 45

28 S.Ct. 439

52 L.Ed. 676

DONA MARIA FRANCISCA O'REILLY DE CAMARA, Countess of Buena Vista, Plff. in Err.,

v JOHN R. BROOKE, Major General, U. S. A.

No. 104.

Argued February 28, March 2, 1908.

Decided March 16, 1908.

Messrs. Frederic R. Coudert, Paul Fuller,

[Argument of Counsel from 45 intentionally omitted] Crammond Kennedy, and Howard Thayer Kingsbury for plaintiff in error.

[Argument of Counsel from 46 intentionally omitted] Assistant Attorney General Russell for defendant in error.

[Argument of Counsel from Page 47 intentionally omitted] Mr. Justice Holmes delivered the opinion of the court:

This is a writ of error to review a judgment of the district court dismissing a complaint purporting to be brought under Rev. Stat. § 563, U. S. Comp. Stat. 1901, p. 459, the 16th clause of which gives the district courts jurisdiction 'of all suits brought by any alien for a tort 'only' in violation of the law of nations, or of a treaty of the United States.' 142 Fed. 858. See 135 Feb. 384. The plaintiff is a Spanish subject and alleges a title by descent to the right to carry on the slaughter of cattle in the city of Havana and to receive compensation for the same. (She does not allege title to the slaughterhouse where the slaughtering was done. That belonged to the city.) According to the complaint the right was incident to an inheritable and alienable office; that of alguacil mayor or high sheriff of Havana. The office was abolished in 1878, subject to provisions that continued the emoluments until the incumbent should be paid. The plaintiff has not been paid, and in 1895 one half of the emoluments was sold on execution by consent, the other half remaining to the plaintiff or those whom she represents. On May 20, 1899, the island of Cuba being under the military jurisdiction of the United States, Bragadier General Ludlow, then governor of Havana, issued an order that the grant in connection with the service of the city slaughterhouse, of which the O'Reilly family and its grantees were the beneficiaries, was ended and declared void, and that thenceforth the city should make provision for such services. The owners were referred to the courts, and it was decreed that the order should go into effect on the first of June. In pursuance of the same, it is alleged, the plaintiff was deprived of her property. She appealed to the defendant, then military governor of Cuba. On August 10 he issued an order, reciting the appeal, and stating that, it being considered prejudicial to the general welfare of Havana, etc., and in view of the cessation of Spanish sovereignty, the office of alguacil mayor de la Habana, together with all rights pertaining thereto or derived therefrom, was thereby abolished, and the right of claimants to the office or emoluments was denied. The city thereafter was to perform the services. It is alleged that by this action the plaintiff was prevented, and to this day has been prevented, from carrying out the duties and receiving the emoluments mentioned above. The complaint ends by alleging violation of the treaty of December 10, 1898 (30 Stat. at L. 1754), and of general orders No. 101, of July 18, 1898, issued by the President through the Secretary of War. It also sets up the Constitution of the United States and the Spanish law in force before the island was ceded by Spain.

The answer denies the plaintiff's right, but admits the passage of the order, and sets up a ratification by the United States in the so-called Platt amendment of the act of March 2, 1901 (chap 803, 31 Stat. at L. 897), to the effect that 'all acts of the United States in Cuba during its military occupancy thereof are ratified and validated, and all lawful rights acquired thereunder shall be maintained and protected,' afterwards embodied in the treaty with Cuba of May 22, 1903. 33 Stat. at L. 2249. The district judge made a finding of facts, substantially supporting the allegations of the bill, which it is not necessary to set forth in detail, but stating one further public fact that should be mentioned. The plaintiff appealed to the Secretary of War to have General Brooke's order revoked. In answer, Mr. Secretary Root denied that the rights attached to the office of sheriff of Havana survived the sovereignty of Spain, observed that the services in question were in substance an exercise of the police power of the state, that the right to exercise that power under Spanish authority ended when Spanish sovereignty in Cuba ended, and that the petitioner had been deprived of no property whatever. In December, 1900, the United States ratified and adopted the action of General Brooke through an order of the Secretary of War, and again by the act of Congress just mentioned and the treaty of 1903. The judge was of opinion that, although there was a public nuisance in the slaughterhouse creek, General Brooke's order was not justified under the police power, but that, by the ratification of the United States, the plaintiff lost any claim against him. The judge intimated, however, that she had a just one against the United States under the treaty with Spain.

We are so clearly of opinion that the complaint must be dismissed that we shall not do more than mention some technical difficulties that would have to be discussed before the plaintiff could succeed. In assuming that General Brooke's order permanently deprived the plaintiff of her rights, although they were attached to no tangible thing, and although General Brooke long since has ceased to be governor of Cuba or to have any power in the premises, the plaintiff necessarily assumes that her rights follow the ancient conception of an office and are an incorporeal...